FOIA Update: Significant New Decisions

Significant New Decisions

Reversing a lower court decision that denied Exemption 5 protection to an internal memorandum that analyzed proposed amendments to the FOIA, the D.C. Circuit Court of Appeals has ruled that an agency may invoke the deliberative process privilege if it can identify the decisionmaking process to which a document has contributed, even if it is unable "to 'pinpoint' a later decision." At issue were redacted deliberative portions of a memo written by a Justice Department staff attorney in 1981 after the Department decided to submit proposed FOIA amendments to Congress. In determining that the memo was "predecisional" -- it was written to help senior agency officials advance the proposal through Congress -- the D.C. Circuit focused on the role that the document played, describing it as "ammunition for the expected fray, in part whether and when to duck," and analogizing it to staff-prepared "talking points" for an agency official to use in a press conference. It concluded by stressing that "[a]ny requirement of a specific decision after the creation of the document would defeat the purpose of the exemption."

In an Exemption 6 case involving the names, addresses and social security numbers of student loan defaulters, the U.S. District Court for the District of Columbia has ruled that defaulting students have a reasonable expectation of privacy in the fact of their default status and in their addresses. It rejected Gannett's argument that any expectation of privacy was lost upon default of the loan, holding that although the defaulters might assume that the government will "diligently pursue the defaulters, public humiliation of debtors is not the roll [sic] of the government." It found no public interest in the withheld personal details -- even though they would "provide details to include in a news story" -- because those details "would reveal nothing about the Department's attempts to collect on those defaulted loans" or "about the potential misuse of public funds."

Morgan v. Department of Justice, 923 F.2d 195 (D.C. Cir. 1991).

In a decision confronting the issue of whether a court's sealing order can justify an agency's withholding of records under the FOIA, the D.C. Circuit Court of Appeals has held that "the mere existence of a court seal is, without more, insufficient to justify nondisclosure under the FOIA." Morgan, a defendant in a criminal case, sought to obtain discovery of an FBI agent's interview notes for use in support of a motion for a new trial. In denying the motion, the judge in the criminal case ordered the notes placed in the record under seal. After this sealing order was affirmed on appeal, Morgan sought the notes under the FOIA. The district court, relying on GTE Sylvania, Inc. v. Consumer's Union, 445 U.S. 375, 384-86 (1980), held that the notes were not "improperly withheld" given the preexisting court seal. In reversing and remanding for further proceedings, the D.C. Circuit faulted the district court (and the agency) for relying on the "mere existence" of the seal "without inquiring into its intended effect." It ruled that it is the agency's burden to demonstrate that "the court issued the seal with the intent to prohibit the [agency] from disclosing the notes as long as the seal remains in effect."

In a decision following Dismukes v. Department of the Interior, 603 F. Supp. 760 (D.D.C. 1984), U.S. District Court Judge John Garrett Penn has held that the Centers for Disease Control met its obligation under the FOIA to disclose records in "readily accessible form" by furnishing the requester with microfiche rather than the hard copies of the records it sought concerning the drug L-tryptophan. In so ruling, Judge Penn rejected the requester's argument that it would have difficulty using the records as released because the nearest microfiche reader was six miles away from its office. Instead, he adopted the rationale that had been articulated by the District Court in Dismukes -- that the agency was within its prerogative to provide responsive records in microfiche form where it had received multiple requests for identical information and where it had determined that it was more efficient and effective to respond to each request in this manner, especially given the fact that microfiche readers are generally available for use in libraries and other public buildings. As further support for his conclusion, Judge Penn noted that of the more than 70 FOIA requests that CDC had received for the same records, only this single requester objected to disclosure in microfiche form.

In a provocative case involving redacted portions of obscenity- investigation and prosecution manuals used by the FBI and Criminal Division of the Department of Justice, U.S. District Court Judge Norma Holloway Johnson applied a combination of Exemptions 2 and 7(E) to protect such sensitive law enforcement information. Noting that the "identity of the requesting party" (which here distributed "what it believes to be constitutionally protected sexually oriented speech throughout the country") was irrelevant to the issue of disclosure, Judge Johnson determined that Exemption 7(E) can properly protect descriptions of even commonly known obscenity-investigation techniques where they are used "in concert with other elements of an investigation and in their totality [are] directed toward a specific investigative goal." She likewise found Exemption 7(E) applicable to the withheld portions of the Department's obscenity-prosecution manual, reasoning that complete disclosure of trial strategies before the time of prosecution would result in unfair and unintended advantage to potential defendants by giving them "a crystal ball view of what they will face from prosecution." Judge Johnson additionally held that the "circumvention" protection of Exemption 2 can be employed to withhold agency descriptions of the types of items likely to be scrutinized by investigative agents, because disclosure would provide violators with "an opportunity to impede lawful [obscenity] investigations by destroying or altering" such types of evidence. The requester has filed an appeal.

Bowen v. FDA, 925 F.2d 1225 (9th Cir. 1991).

In another case involving the applicability of Exemption 7(E), the Ninth Circuit Court of Appeals determined that the Food and Drug Administration properly withheld information regarding "tracing techniques" used to determine the source of the cyanide applied to cyanide-tampered products. The plaintiff, who at the time of his FOIA request was incarcerated for attempted murder in a cyanide tampering involving Anacin-3 capsules, argued that any exemption protection had been waived as a result of the testimony of an FDA scientific expert at his criminal trial. The Ninth Circuit specifically found, however, that disclosure would "present a serious threat to future law enforcement product-tampering investigations by revealing specifics of cyanide-tracing techniques." It rejected the plaintiff's waiver argument, noting that the documents and testimony introduced at his trial consisted "chiefly of summaries and conclusions, rather than any depth or detail of actual laboratory analyses."

SafeCard Servs., Inc. v. SEC, No. 89-5374 (D.C. Cir. Mar. 1, 1991).

In the first appellate application of the Exemption 7(C) "categorical" protection established by the Supreme Court in Reporters Committee, the D.C. Circuit Court of Appeals has held that "unless access to the names and addresses of private individuals appearing in files within the ambit of Exemption 7(C) is necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal activity, such information is exempt from disclosure." At issue were the identities of third parties mentioned in witness interviews, customers of stock transactions, and persons who wrote to the SEC -- all compiled in connection with a series of investigations into illegal trading in SafeCard's stock. In adopting a "categorical" approach for third parties mentioned in law enforcement files, the D.C. Circuit found their privacy interests to be "substantial" and disclosure of their names to be "simply not very probative of an agency's behavior or performance." It concluded that courts should "generalize from their experience . . . in order to minimize unnecessary inquiries into factual minutiae" and to avoid a "poor use of resources," so Exemption 7(C) should be employed "categorically" in such cases.

With respect to minutes of the Commission's meetings, however, the D.C. Circuit rejected the SEC's argument that such records were necessarily "pre-decisional" and thus eligible for protection under the deliberative process privilege of Exemption 5. It remanded the case for the district court to determine whether the minutes were pre-decisional discussions or final opinions, and instructed that the relevant factors should include: "how decisions like those in issue are reached; the role that staff discussion and memoranda play in such decisions; the manner in which such decisions are memorialized and explained; and whether such decisions are treated, in later agency decisionmaking, as precedents." It also noted that a Commissioner's public explanation of his or her vote, or any express incorporation or adoption by the Commission of prior discussions by way of explaining its final collective decision, would strip such items of their predecisional character.